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Kendall v. Davis

United States District Court, D. New Jersey

November 7, 2018

MONIQUE KENDALL, Petitioner,
v.
SARAH DAVIS, et al., Respondents.

          OPINION

          JOHN MICHAEL VAZQUEZ UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Pro se Petitioner Monique Kendall initiated this § 2254 habeas action on November 17, 2017.[1] (ECF No. 1.) Petitioner filed her operative habeas pleading on or about March 9, 2018 (the “§ 2254 Petition”). (ECF No. 3-1.) Respondents now move for dismissal of the § 2254 Petition as untimely-filed. (ECF No. 9.) For the reasons stated herein, Respondents' motion will be granted, the § 2254 Petition shall be dismissed with prejudice, and no certificate of appealability shall issue. Petitioner's motion for pro bono counsel (at ECF No. 10) will be denied as moot.

         II. BACKGROUND

         Petitioner is currently incarcerated at Edna Mahan Correctional Facility in Clinton, New Jersey, where she is serving a 25-year sentence after being convicted in New Jersey Superior Court of first degree aggravated manslaughter; unlawful possession of a weapon; and possession of a weapon for an unlawful purpose. (See Nov. 30, 2005 Am. J. of Conviction, ECF No. 9-7.) Petitioner was convicted of the two weapons charges by a jury; she pled guilty to the manslaughter charge on April 30, 2004, after ten members of that same jury voted to find her guilty of murder and two other jurors instead voted to convict her of the lesser crime of manslaughter. State v. Kendall, No. A-0027-14T2, 2017 WL 1282728, at *1 ( N.J.Super.Ct.App.Div. Apr. 6, 2017). Petitioner's judgment of conviction was filed on November 30, 2005. (ECF No. 9-7.)

         Between 2004 and 2012, Petitioner “actively pursued [multiple] appeals of her sentence and [also pursued an appeal of] the [trial court's July 2, 2008] denial of [Petitioner's later-filed] petition to withdraw her guilty plea.” Kendall, 2017 WL 1282728, at *1. The “[New Jersey] Supreme Court [ultimately] denied certification on the final iteration of [Petitioner's] direct appeal on April 9, 2012.” (Resp'ts' June 27, 2018 Br. in Supp. of Mot. to Dismiss, ECF No. 9-1 at PageID: 88; accord Pet'r's Aug. 6, 2018 Br. in Opp. to Mot. to Dismiss, ECF No. 11 at PageID: 153; see also Apr. 9, 2012 Order of N.J. Sup. Ct. Den. Cert., ECF No. 9-12.)

         Petitioner thereafter initiated post-conviction relief (“PCR”) proceedings in New Jersey Superior Court, Law Division (the “PCR court”) via the filing of her first PCR petition on May 1, 2012. See, e.g., State v. Kendall, No. 03-01-0036, slip op. at 6 ( N.J.Super. Ct. Law Div. Feb. 4, 2014) (available at ECF No. 9-14). On February 4, 2014, the PCR court denied post-conviction relief to Petitioner because Petitioner's original PCR petition was not filed “within five years after rendition of the [November 30, 2005 judgment of conviction] sought to be attacked.”[2] Id. at 5 (quoting N.J. Ct. R. 3:22-12(a)). The Appellate Division of the New Jersey Superior Court affirmed “essentially for the reasons stated in [the PCR court's] thorough and thoughtful decision.” State v. Kendall, No. A-0027-14T2, 2017 WL 1282728, at *1 ( N.J.Super.Ct.App.Div. Apr. 6, 2017). On September 25, 2017, the New Jersey Supreme Court denied Petitioner's petition for certification of her PCR appeal. (ECF No. 9-16.)

         On November 17, 2017, Petitioner initiated the present action. (See ECF No. 1.) Petitioner filed her relevant § 2254 Petition on or about March 9, 2018. (ECF No. 3-1.) On June 27, 2018, Respondents filed the present motion to dismiss the § 2254 Petition on timeliness grounds. (ECF No. 9.) Petitioner filed opposition to Respondents' motion on August 6, 2018. (ECF No. 11.)

         III. LEGAL STANDARD AND ANALYSIS

         A. The § 2254 Petition Is Untimely Under AEDPA

         “The Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA'), Pub. L. No. 104-132, 110 Stat. 1218, generally mandates that petitions for writ of habeas corpus be filed within one year after the conclusion of direct appellate review[.]” Engel v. Hendricks, 153 Fed.Appx. 111, 112 (3d Cir. 2005); accord Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013); see also 28 U.S.C. § 2244(d)(1)(A) (“A [one-year] period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a [State court]. The limitation period shall run from . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”).

         The record in this matter conclusively demonstrates that (1) the New Jersey Supreme Court denied certification of the final iteration of Petitioner's direct appeal on April 9, 2012 (see ECF No. 9-12); and that (2) Petitioner did not thereafter file a petition for certiorari in the United States Supreme Court. Petitioner's conviction therefore became final ninety days later on July 8, 2012, when Petitioner's time to file the certiorari petition expired.[3] See Ross, 712 F.3d at 798 (3d Cir. 2013); see also Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 (3d Cir. 2013).

         As such, in the absence of equitable or statutory tolling, Petitioner was required under AEDPA to file her § 2254 Petition by July 8, 2013. See 28 U.S.C. § 2244(d)(1)(A). Petitioner, however, filed her original habeas petition on November 17, 2017, more than four years “after the conclusion of direct appellate review[.]” Engel, 153 Fed.Appx. at 112. Petitioner's § 2254 Petition is therefore per se untimely under AEDPA.

         B. The ยง 2254 Petition is Not Entitled to Statutory ...


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